100th session of the Legal Committee of the IMO

The International Maritime Organization (IMO) London on 15 – 19 April, 2013 the landmark 100th session of the Legal Committee of the International Maritime

Lack of Due Process Breeds Fear of Criminalisation Among Seafarers

Seafarers’ suggestions on how to improve their situation when facing criminal charges were presented at the landmark 100th session of the Legal Committee of the International Maritime Organization (IMO) which met in London on 15 – 19 April, 2013.

The suggestions, which emanated from a comprehensive eight language survey conducted by Seafarers’ Rights International (SRI) over a 12-month period to February 2012, focus as much on fears of their own human rights being violated as on a lack of due process in the criminal process.

A total of 3,480 completed questionnaires were submitted by seafarers from 68 different nationalities.

According to the seafarers themselves, there is a frequent lack of due process for seafarers who face criminal charges. Seafarers are complaining of unfair treatment, intimidation and a lack of legal representation and interpretation services. Almost half of the seafarers in the survey said that they would be reluctant to co-operate fully and openly with casualty inquiries and accident investigators because of concerns they could be implicated in a crime; because they do not trust the authorities; and because they are concerned that co-operation would have a prejudicial affect upon their employment.

The findings in the survey strongly suggest that the rights of seafarers, as enshrined in the Guidelines on Fair Treatment of Seafarers in the event of a Maritime Accident, adopted by the IMO and the International Labour Organization (ILO) are often be subject to violation: itself causing widespread concern among seafarers.

As many as 85.04% of seafarers surveyed, said that they are concerned about facing criminal charges. The main reasons were that seafarers feel they are scapegoated. Also seafarers feel there are numerous regulations which make them more vulnerable to being criminalised.

To improve the situation, seafarers want more information on the risks they are exposed to in relation to criminal charges as well as their rights if they are defendants, complainants or witnesses. They also want good and free legal representation when facing criminal charges; a fair process and fair treatment when facing criminal charges; a greater network of support from all the various stakeholders in the maritime industry if they do face criminal charges; and more uniform laws and procedures given the wide range of different crimes to which they are exposed.

“The message from seafarers is loud and clear,” said Deirdre Fitzpatrick, Executive Director of SRI: “Seafarers are saying that their rights are theoretical and illusory; they need them to be practical and effective.

“Since criminal laws are largely tailored to nationals, they are an uneasy fit for foreign and temporary transnational workers. It is clear that seafarers are more exposed to criminal proceedings than many other workers and therefore need special assistance,” she added.

“The seafarers’ suggestions for what is needed to improve their situation, or their perception of their situation, offer a challenge to the maritime industry and to prosecuting authorities generally, if seafaring is to remain a viable option for young people.

“The SRI survey has brought the seafarers’ concerns to the fore and it is hoped it will create momentum amongst stakeholders – seafarers’ organisations, employers, regulators and non-governmental bodies, in addition to seafarers themselves – to better address the unfair treatment of seafarers. It seems that much remains to be done to protect this body of essential workers from unfairness and injustice but the effort is essential not only for the protection of serving seafarers, but also to improve the image of the profession for new recruits to come,” Ms Fitzpatrick concluded.

The 100th session of the IMO Legal Committee was attended by 88 member government delegations; 2 associate member delegations; 1 specialised agency; 2 intergovernmental organizations; and 20 non-governmental organizations.

The Committee agreed that the issue of fair treatment of seafarers in the event of a maritime accident should remain on its agenda and be discussed again in 2014.

 Guidelines on Dealing with Crimes on Ships Approved by IMO

Draft guidelines on the preservation and collection of evidence following an allegation of a serious crime having taken place on board a ship, or following a report of a missing person from a ship, and on pastoral and medical care of victims were approved  by the Legal Committee of the International Maritime Organization (IMO), when it met for its 100th session.

The draft guidelines, which focus on what can practically be carried out on board a ship to preserve and/or collect evidence and protect persons affected by serious crimes, until such time that the relevant law enforcement authorities commence an investigation, will now be submitted to the IMO Assembly 28th session, in November 2013, along with an associated draft resolution, for consideration with a view to adoption.

The primary purpose of the draft guidelines is to assist masters in the preservation of evidence and in the pastoral and medical care of persons affected and, when appropriate, in the collection of evidence, during the period between the report or discovery of a possible serious crime and the time when law enforcement authorities or other professional crime scene investigators take action.

The draft guidelines further state that the master is not a professional crime scene investigator and does not act as a criminal law enforcement official when applying the guidelines. The guidelines should not be construed as establishing a basis of any liability, criminal or otherwise, of the master in preserving and/or handling evidence or related matters.

The draft guidelines include sections covering co-operation and coordination between interested States and parties; the role of the master; missing persons; and pastoral and medical care.

Appendix 1 includes suggested formats for Victim Statement; Alleged Perpetrator Statement; and Independent Witness Statement.

Appendix 2 includes guidance derived from MSC.1/Circ.1404 (Guidelines to assist in the investigation of the crimes of piracy and armed robbery against ships), including guidelines on recovery and packaging of evidence. The guidelines establish that the master is not a professional crime scene investigator and does not act in the capacity of a criminal law enforcement official and that the guidance will likely only be applied in limited and exceptional circumstances by masters who may be called upon to collect evidence that may otherwise be lost if no action is taken.

The work to develop the guidelines followed the adoption by the IMO Assembly of a resolution on the subject (A.1058(27)), which invited States to submit proposals to the Committee.

Guidelines to assist countries in meeting reporting requirements under the 2010 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious substances by Sea, 2010 (2010 HNS Convention) were endorsed by the Committee.

The guidelines, on HNS reporting to facilitate the submission by States to the Secretary-General of contributing cargo data for the purposes of article 20(4) and (6) of the 2010 HNS Protocol, were developed and adopted at a two day workshop convened jointly by IMO and the International Oil Pollution Compensation Funds (IOPC Funds) Secretariats and held at IMO in October 2012. It was attended by more than 100 participants.

The guidelines are expected to help in overcoming one of the main obstacles preventing States from ratifying the Protocol, namely the difficulty of complying with this reporting requirement, particularly in view of the enormous variety of HNS substances that are potentially subject to the reporting requirement.  As well as the guidelines, the Committee also approved a model letter to accompany the model form for receivers, a State model reporting form, a receiver model reporting form and an HNS contributing cargo nil declaration form.

Piracy work reviewed

The Committee received an update on the work of the 11th and 12th sessions of WG2 (which addresses the judicial aspects of piracy) of the Contact Group on Piracy off the Coast of Somalia, held in September 2012 and April 2013.

The Committee noted information provided by the United Nations Office on Drugs and Crime (UNODC) on the number of pirates captured and handed ashore for further investigation.

Among the views expressed in relation to the judicial aspects of piracy, it was noted that transparency in identifying problems related to the apprehension of pirates was beneficial to all parties involved in combating piracy or struggling with the consequences of this crime.

Delegations noted that Member States and organizations in consultative status with IMO should share their experience in resolving problems related to apprehension of pirates and should provide related information to IMO.

They also commented that IMO is the primary forum within the UN system responsible for coordinating efforts of the wider international community in its fight against piracy; and that States had full sovereignty in their territorial waters, consequently measures such as using privately armed guards on board ships should be adopted for combating piracy in places that are not subject to the jurisdiction of any State.

The Committee also noted information provided by the United Nations Interregional Crime and Justice Research Institute (UNICRI) on the database on court decisions related to piracy which it has established. The database can be found at  http://www.unicri.it/topics/piracy/database/ and by following the related link from http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Pages/Default.aspx

UNICRI also provided the Committee with statistics drawn from its Piracy Analysis, including the average age of pirates; the region and clans they come from; their occupations; when attacks are most likely to occur; the number of pirates participating in individual attacks; the use of motherships; the number of casualties occurring in pirate ranks and the number and type of ships boarded.

Fair treatment of seafarers – report reviewed

The Committee was provided with the findings of a survey, conducted by Seafarers’ Rights International (SRI), concerning respect for the rights of seafarers facing criminal prosecution. The survey results were submitted by the observer delegations of the International Transport Workers’ Federation (ITF) and the International Federation of Shipmasters’ Associations (IFSMA).  The findings strongly suggested that the rights of seafarers, as enshrined in the Guidelines on fair treatment of seafarers in the event of a maritime accident, adopted jointly by IMO and the International Labour Organization (ILO), are often subject to violation.

The Committee thanked the co-sponsors for the document and expressed general support for the continuous promotion of the Guidelines.  The Committee also agreed that the issue of fair treatment of seafarers in the event of a maritime accident should remain on the agenda of the Legal Committee and delegations were invited to submit proposals for outputs to improve compliance with the Guidelines to its next session.

Liability issues from offshore oil exploration further discussed

The Committee noted information from Indonesia on the outcome of the second International Conference on Liability and Compensation Regime for Transboundary Oil Damage Resulting from Offshore Exploration and Exploitation Activities, held in Bali in November 2012, as well as a submission containing principles for guidance on model bilateral/regional agreements or arrangements on liability and compensation issues connected with transboundary pollution damage from offshore exploration and exploitation activities.

The Committee recalled its previous decision to analyse further the liability and compensation issues connected with transboundary pollution damage resulting from offshore oil exploration and exploitation activities, with the aim of developing guidance to assist States interested in pursuing bilateral or regional arrangements, following the Deepwater Horizon incident in 2010 and the 2009 incident on the Montara offshore oil platform, located in the Australian Exclusive Economic Zone, in which a well blew out, leading to a significant oil spill.

The Committee agreed that assistance should be provided to those States which are in need of guidance for bilateral and multilateral agreements.

Member States were invited to send examples of relevant legislation and, in particular, examples of existing bilateral and regional agreements to the Secretariat; and the delegation of Indonesia was encouraged to continue with its work to facilitate further progress within the Committee.